What do I need to do if I think an employee does not have the right to work in the UK?

Employing a worker who does not have the right to work in the UK is a breach of immigration laws and can lead to serious adverse consequences for the business.

However, the extent of the action taken by the authorities will depend on the steps you took before employing the individual, and the steps you take once you realise they may not have the right to work. 

Employing an individual who does not have the right to work is a civil, and depending on the severity of the matter, potentially criminal offence. The penalties can include a fine of up to £20,000 per worker who does not have the right to work, revocation of a sponsor licence (if you have one) and in the most serious of cases, imprisonment of a director of the organisation. 

Steps before employment commences

If you conducted a valid right to work check before the employment commenced, you may have established a statutory excuse against a civil penalty, if it transpires that the individual did not have the right to work. 

In order to be valid, the check must have been carried out in line with the Home Office guidance at the time that the individual started working for your organisation – the guidance changes frequently and therefore it can be critical to know which steps were required at the relevant time. Conducting a valid right to work check involves checking that the individual’s document matches the person presenting themselves for work. We have discussed how to conduct a valid right to work check in our previous blog. 

If you did not conduct a valid right to work check, or if the Home Office concludes that you should have known that the individual did not have the right to work, you may not have established a statutory excuse and may still be liable for a civil penalty. 

Steps once you realise the individual does not have the right to work

If you believe that the individual does not have the right to work, it may be advisable to have a discussion with the employee to check if there are any steps that need to be taken, or if they can provide you with the relevant immigration documents. You may also need to consult specialist immigration advisors. 

Following the UK’s departure from the EU, the Home Office guidance states that if you find that an EU national employee no longer has lawful permission to remain in the UK, you should advise them to apply to the EU Settlement Scheme. If they do not do so within 28 days, you will need to take steps to terminate their employment in line with UK employment laws. 

In relation to all other nationalities, and EU nationals who arrived in the UK after Brexit, if there are no additional steps to be taken, you may also need to terminate their employment as soon as possible, in line with UK employment laws. 

If you believe that the individual has provided you with false immigration documentation (either not belonging to them or having been tampered with), the Home Office guidance states that you should report this to the Home Office either online or by calling the Employer Enquiry Helpline.

If you conducted a valid right to work check and the Home Office concludes that it was reasonable for you to not have known that the documents were false, you may have a statutory excuse against a civil penalty and may just receive a ‘warning’ from the Home Office. However, if the Home Office concludes that you should have known that the documents were false, there may be adverse consequences, and therefore it is best that you act as soon as possible to mitigate the potential damage.

How Gherson can assist

Gherson’s Immigration Team are highly experienced in advising on UK visa matters. If you have any questions arising from this blog, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on Twitter, Facebook, Instagram, or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

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